by John Yoo
51. See Charlie Savage, "Three Democrats Slam President Over Defying Statutes," Boston Globe, May 2, 2006; "ACLU Sues to Stop Illegal Spying on Americans, Saying President is Not Above the Law," Jan. 17, 2006, available at: http://www.aclu.org/safefree/nsaspying/23486prs20060117.html.
52. John Locke, The Second Treatise of Government SS 148 (1690).
53. The Federalist No. 23, at 147 (J. Cooke ed., 1961) (Alexander Hamilton).
54. Id.
55. The Federalist No. 70, supra note, 50 at 471.
56. The Federalist No. 74, supra note, 50, at 500.
57. President Andrew Jackson expressed the same view in 1832, vetoing a bill that he regarded as unconstitutional even though the Supreme Court had upheld it as constitutional. "It is as much the duty of the house of representatives, of the senate, and of the president to decide upon the constitutionality of any bill or resolution, just as with the Supreme Court when the law arises in a case before them," he wrote. Abraham Lincoln, in the case of Dred Scot, famously announced in his first inaugural that thenceforth, he would not follow the rule that a slave would not be free once in Northern territory, though he chose to obey the Supreme Court's order in the Dred Scot case itself. President Franklin Roosevelt evaded Congress's Neutrality Acts and provided aid and comfort to the allies before Pearl Harbor.
58. For representative works arguing that Congress has sole control over when to begin wars, see Fisher, supra note 36, at 203; John Hart Ely, War and Responsibility: Constitutional Lessons of Vietnam and its Aftermath (1993); supra note 36, 81(1990); Louis Henkin, Constitutionalism, Democracy, and Foreign Affairs 109 (1990); Harold Hongju Koh, The National Security Constitution: Sharing Power After the Iran-Contra Affair 158-61 (1990). My argument in response can be found in Yoo, supra, note 22, at 143-81.
59. See, e.g., John Hart Ely, Suppose Congress Wanted a War Powers Act That Worked? 88 Colum. L. Rev. 1379 (1988).
60. Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850).
61. For a standard historical source on the period see Robert Dallek, Franklin D. Roosevelt and American Foreign Policy, 1932-1945 (1979). See also Robert Divine, Roosevelt and World War II (1969); Gaddis Smith, American Diplomacy During the Second World War (1965); Frederick W. Marks III, Wind Over Sand: The Diplomacy of Franklin Roosevelt (1988); Warren F. Kimball, The Juggler: Franklin Roosevelt as Wartime Statesman (1991).
62. Marc Trachtenberg, "The Bush Strategy in Historical Perspective," in James Wirtz and Jeffrey Larsen, eds., Nuclear Transformation: The New U.S. Nuclear Doctrine (2005).
63. This history is recounted in John Lewis Gaddis, Strategies of Containment: A Critical Reappraisal of American National Security Policy during the Cold War (rev'd ed. 2005); John Lewis Gaddis, We Now Know: Rethinking Cold War History (1998).
64. The Framers clearly intended to replicate the British model of the executive, which was in both theory and practice hemmed in by the parliamentary power of the purse. Pressed during the Virginia ratifying convention with the charge that the President's powers could lead to a military dictatorship, James Madison argued that Congress's control over funding would be enough of a check to control the executive.
65. "Congress cannot anticipate and legislate with regard to every possible action the President may find it necessary to take or every possible situation in which he might act," the Supreme Court has said. "Such failure of Congress...does not, 'especially...in the areas of foreign policy and national security,' imply 'congressional disapproval' of action taken by the Executive." Dames & Moore v. Regan, 453 U.S. 654, 678 (1981) [quoting Haig v. Agee, 453 U.S., 280, 291 (1981)].
Chapter 6
1. Hamdi v. Rumsfeld, 542 U.S. 507, 519 (2004).
2. Rasul v. Bush, 542 U.S. 466 (2004).
3. Hamdi, 542 U.S. at 543.
4. Johnson v. Eisentrager, 339 U.S. 763 (1950).
5. These facts come from the opinions issued by Judge Ellis during Lindh's trial. See United States v. Lindh, 212 F. Supp. 2d 541 (E.D.Va. 2002); United States v. Lindh, 227 F. Supp. 2d 565 (E.D.Va. 2002).
6. Lindh, 212 F. Supp. 2d at 553-58.
7. 18 U.S.C. SS 2339A--SS 2339B.
8. Lindh, 227 F. Supp. 2d at 571.
9. Hamdi, 294 F.3d 598 (4th Cir. 2002).
10. Hamdi, 542 U.S. at 511-12.
11. Hamdi, 296 F.3d 278, 279, 283 (4th Cir. 2002)
12. Hamdi, 542 U.S. at 513.
13. Hamdi, 316 F. 3d 450, 459 (4th Cir. 2003).
14. Id., at 475.
15. These facts are taken from Padilla v. Hanft, 423 F.3d 386 (4th Cir.2005); Rumsfeld v. Padilla, 542 U.S. 426 (2004); Padilla v. Rumsfeld, 352 F.3d 695 (2d Cir. 2003) Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y 2002).
16. On Feb. 24, 2004 then White House counsel Alberto Gonzales described the Padilla process in a speech before the American Bar Association's Standing Committee on Law and National Security. 150 Cong. Rec. S2701, S2703-S2704 (daily ed. Mar. 11, 2004) (reprinting speech).
17. 4 See Padilla v. Hanft, 423 F.3d 386 (4th Cir. 2005) (reprinting order).
18. Padilla v. Rumsfeld, 233 F. Supp. 2d 564 (S.D.N.Y. 2002).
19. Padilla v. Rumsfeld, 352 F.2d 695 (2d. Cir. 2003).
20. Brief of Louis Henkin, Harold Hongju Koh, and Michael H. Posner as Amici Curiae in Support of Respondents, Rumsfeld v. Padilla, 542 U.S. 426(2004), 2003 U.S. Briefs 1027; 2004 U.S. S. Ct. Briefs LEXIS 299.
21. See also Brief of Janet Reno, et al., Amici Curiae in Support of Respondents, Rumsfeld v. Padilla, 542 U.S. 426 (2004), 2003 U.S. Briefs 1027; 2004 U.S.S. Ct. Briefs LEXIS 293.
22. See generally Lt. Col. G. Lewis & Capt. J. Mewha, History of Prisoner of War Utilization by the United States Army 1776-1945, Dep't of the Army Pamphlet No. 20-213 (1955).
23. Ex Parte Quirin, 317 U.S. at 30-31.
24. As the Supreme Court observed long ago, that power includes the discretion to direct the military "in the manner he may deem most effectual to harass and conquer and subdue the enemy." Fleming v. Page, 50 U.S. (9 How.) 603, 615 (1850). The Constitution's "grant of war power," the Court has said on another occasion, is not limited just to actual battlefield operations, but also "includes all that is necessary and proper for carrying [it] into execution." Johnson v. Eisentrager, 339 U.S. 763, 788 (1950).
25. Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866).
26. Milligan had lived "in Indiana for the past twenty years, was arrested there, and had not been, during the late troubles, a resident of any of the states in rebellion." Id. at 131.
27. Id. at 121.
28. Id. at 120-21.
29. These facts are taken from Louis Fisher, Military Tribunals & Presidential Power: American Revolution to the War on Terrorism (2005) and David Danelski, "The Saboteurs' Case," 1 J. S. Ct. Hist. 61, 61-63 (1996).
30. Ex Parte Quirin, 317 U.S. 1 (1942).
31. Id. at 37-38.
32. Id. at 37.
33. Id. at 45.
34. They argued that the Supreme Court "has never sanctioned military jurisdiction over an individual who was not a soldier in a recognized army or found in an area of active combat or under military occupation or martial law." Respondent's Brief on the Merits, Rumsfeld v. Padilla, No. 03-1027 (Apr. 12, 2005), at 2004 WL 812830 (U.S.).
35. Their argument also ignores Supreme Court precedent established in Quirin. Only an "association" with the enemy need be shown. A capture need not be in the midst of an act of hostility or in the theater of war. "It is without significance that petitioners were not alleged to have borne conventional weapons." Quirin, 317 U.S. at 37. They don't need to be carrying weapons. "It is without significance that...their proposed hostile acts did not necessarily contemplate collision with the Armed Forces of the United States." Id. Whether attacks planned are on the military or on civilian targets is irrelevant. Wearing uniforms, or being in the United States rather than at the front, doesn't matter either. Id. at 35.
36. Harvard law professor and former Clinton Justice Department official Philip Heyman
n writes that "a country cannot be free if the Executive retains the power, on its own determination that certain conditions are met, to detain citizens for an indefinite period." Philip B. Heymann, Terrorism, Freedom, and Security: Winning without War (2003).
37. Padilla's lawyers told the Supreme Court that "unlike a traditional war, the 'war on terror' may never end, and there is no clear point at which prisoners must be released." Respondent's Brief on the Merits, Rumsfeld v. Padilla, No. 03-1027 (Apr. 12, 2005), at 2004 WL 812830 (U.S.).
38. While this recent quote comes from the Geneva Conventions, it codifies centuries of historical practice requiring POWs to be released when peace came. GPW, art. 118, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135 (entered into force Oct. 21, 1950).
39. Civil libertarians even went so far as to file a brief in the 2004 Supreme Court detainee cases on behalf of Mr. Korematsu, whose detention was upheld in the Supreme Court case of his name in 1944. Korematsu v. United States, 323 U.S. 214 (1944).
40. The Act declares that "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." 18 U.S.C. SS 4001(a).
41. Respondent's Brief on the Merits, Rumsfeld v. Padilla, No. 03-1027 (Apr. 12, 2005), at 2004 WL 812830 (U.S.).
42. In fact, when Congress passed the Act, some legislators questioned whether it might conflict with the President's powers in war, and the floor managers assured them that it would not have that effect. See, e.g., 117 Cong. Rec. at 31555-57 (statement of Abner Mikva). Before the Hamdi and Padilla cases, no court had ever construed this 1972 law to apply to the detention of the enemy in war, or to infringe on the President's commander-in-chief powers. Before the terrorism cases, every court to interpret the Anti-Detention Act applied it to the civilian prison system. See Howe v. Smith, 452 U.S. 473, 479 (1981); Lono v. Fenton, 581 F.2d 645, 648 (7th Cir. 1978); Seller v. Ciccone, 530 F.2d 199, 201 (8th Cir. 1976); Marchesani v. McCune, 531 F.2d 459, 461 (10th Cir. 1974); Bono v. Saxbe, 462 F. Supp. 146, 148 (E.D. Ill. 1978).
43. Another federal statute, 10 U.S.C. SS 956(5), appropriates funds to the military for "the maintenance, pay and allowances for prisoners of war" and "other persons in the custody of the [military] whose status is determined by the Secretary to be similar to prisoners of war," and "persons detained in the custody of the [military] pursuant to Presidential proclamation." As the Fourth Circuit observed in Hamdi, "[It] is difficult if not impossible to understand" how Congress could appropriate funds for combatants "similar to prisoners of war without also authorizing their detention in the first instance." Hamdi, 316 F.3d at 467-468.
44. In 1909, Justice Oliver Wendell Holmes came to the same conclusion in a case brought by a citizen detained by the governor of Colorado in an uprising. Moyer v. Peabody, 212 U.S. 78 (1909). Holmes found that, under Colorado's constitution, the governor had the power to "suppress insurrections" and that this included the lesser power to detain. This power meant the governor "shall make the ordinary use of soldiers to that end; that he may kill persons who resist, and, of course, that he may use the milder measure of seizing the bodies of those whom he considers to stand in the way of restoring peace." Id. at 84. When the executive is authorized "with regard to killing men in the actual clash of arms," Holmes wrote, "the same is true of temporary detention to prevent apprehended harm." Id. at 85. Holmes also made the point that detention was appropriate as it was for the prevention of future harms, not punishment for past acts. "Such arrests are not necessarily for punishment, but are by way of precaution, to prevent the exercise of hostile power." Id. at 84-85.
45. For the rich academic debate on delegation of legislative authority to administrative agencies, see Larry Alexander & Saikrishna Prakash, "Reports of the Nondelegation Doctrine's Death are Greatly Exaggerated," 70 U. Chi. L. Rev. 1297 (2003); Eric Posner & Adrian Vermeule, "Interring the Nondelegation Doctrine," 69 U Chi. L. Rev. 1721 (2002); Gary Lawson, "Delegation and Original Meaning," 88 Va. L. Rev. 327 (2002); John F. Manning, "The Nondelegation Doctrine as a Canon of Avoidance," 2000 S. Ct. Rev. 223, 228; Cass R. Sunstein, "Nondelegation Canons," 67 U. Chi. L. Rev. 315, 321-22 (2000).
46. Haig v. Agee, 453 U.S. 280, 292 (1981).
47. See, e.g., INS v. St. Cyr, 533 U.S. 289, 306 (2001); Fernandez v. Phillips, 268 U.S. 311, 312 (1925).
48. See United States v. Lindh, 2002 WL 1298601 (E.D.Va. 2002) (allowing defense to submit questions to be asked of enemy combatants); United States v. Moussaoui, 365 F.2d 292 (4th Cir. 2004) (ordering government to provide written substitutions to take place of live depositions of enemy combatants).
49. Brief of Louis Henkin, Harold Hongju Koh, and Michael H. Posner as Amici Curiae in Support of Respondents, Rumsfeld v. Padilla, 542 U.S. 426(2004), 2003 U.S. Briefs 1027; 2004 U.S. S. Ct. Briefs LEXIS 299.
50. And only one President, Abraham Lincoln, has ever refused to obey a writ of habeas corpus. At the beginning of the Civil War, President Lincoln ordered a suspension of the writ. Only Congress appears to have this power, which the Constitution recognizes in Article I, Section 9's description of limitations on the legislature. Congress was not even in session for the first months of the Civil War. Lincoln's administration justified the suspension on the ground that the Constitution allows the suspension of the writ in the passive tense, without specifically identifying which branch may do so. In Ex Parte Merryman, Chief Justice Roger Taney issued a writ ordering the military to release John Merryman, a Maryland resident suspected of supporting Confederate efforts to prevent Union troops from moving south through Maryland to defend Washington, D.C. Ex Parte Merryman, 17 F. Cas. 144(C.C.D. Md. 1861) (Taney, C.J.) (No. 9,487); see also Michael Stokes Paulsen, "The Most Dangerous Branch: Executive Power to Say What the Law Is," 83 Georgetown L. J. 217 (1994). The general holding Merryman refused to accept Taney's order, and it was not until 1862 that Congress enacted a law suspending the writ of habeas corpus and establishing procedures reviewing military detentions. It was the Merryman case and his suspension of habeas corpus that prompted Lincoln to utter his famous rhetorical question in his special message to Congress in July 1861: "Are all the laws, but one, to go unexecuted, and the government itself to go to pieces, lest that one be violated?" Chief Justice Rehnquist took the first words of the famous quote for the title of his book on civil liberties in wartime. William H. Rehnquist, All the Laws But One: Civil Liberties in Wartime (1998).
51. Johnson v. Eisentrager, 339 U.S. 763, 779 (1950).
52. Id. at 778.
53. Id. at 779.
54. Id.
55. In the 1990 United States v. Verdugo-Urquidez, the Supreme Court refused to hear a case against the United States brought by a Mexican citizen whose home had been searched without a search warrant by American agents. 494 U.S. 259, 273 (1990). In rejecting the Fourth Amendment claim, the Court emphasized that aliens could not claim the benefit of the Constitution for conduct outside the United States--such aliens were not part of the "we the people" who benefited from the Fourth Amendment. Further, the Court found that allowing such claims "would have significant and deleterious consequences for the United States in conducting activities beyond its boundaries," not just in drug cases as in Verdugo-Urquidez, but in the use of the armed forces abroad "for the protection of American citizens or national security."
56. http://www.defenselink.mil/news/Jul2004/d20040707factsheet.pdf.
57. Guy Taylor, "Military to Keep Freeing Prisoners," Wash. Times, Oct. 21,2004.
58. Eisentrager, 339 U.S. at 779.
59. Justice Thomas, who observed that "the courts simply lack the relevant information and expertise to second-guess determinations made by the President based on information properly withheld," agreed with this approach. See Hamdi, 542 U.S. at 583 (Thomas, J. dissenting).
60. 542 U.S. 426 (2004).
61. Padilla v. Hanft, 423 F.3d 386, 391 (4th Cir. 2005).
62. U.S. Department of Justice Press Release, Jose Padilla Charged with Conspiracy to Murder Individuals Overseas, Pr
oviding Material Support to Terrorists, www.usdoj.gov/opa/pr/2005/November/05_crm_624.html.
63. See Hamdi, 524 U.S. at 516-24. Justice O'Connor wrote the plurality opinion, which the chief justice, Justice Kennedy, and Justice Breyer joined.
64. Id. at 518.
65. According to their opinion, "detention to prevent a combatant's return to the battlefield is a fundamental incident of waging war." Id. at 519. The Court also said that "[T]he purpose of detention is to prevent captured individuals from returning to the field of battle and taking up arms once again." Id. at 518.
66. "A citizen, no less than an alien, can be 'part of or supporting forces hostile to the United States or coalition partners' and 'engaged in an armed conflict against the United States,'" said the justices. Id. at 519.
67. Id. at 519-22.
68. Its only concern was that detention might go too far if hostilities continued for "two generations," but it did not explain why. Id. at 520.
69. At the outset of the Civil War, the Court deferred to the President's determination that the Confederate States' secession amounted to a declaration of war, and observed that the President may determine the level of force to use. In the Prize Cases, the Court explained that the President, as the commander in chief and not the Court, had the power to decide whether to treat the Southern states as "belligerents." The Prize Cases, 67 U.S. (2 Black) 635, 670 (1862). The Court did not question the merits of his decision, but stated it must leave such an evaluation to "the political department of the Government to which this power was entrusted." Id. Quirin had decided that the President could detain American citizens without trial if they associate with the enemy. In the waning days of World War II, the Court found that the question of whether a state of war continued to exist--despite the apparent cessation of active military operations--was a political question. Ludecke v. Watkins, 335 U.S. 160, 169 (1948). ("Whether and when it would be open to this Court to find that a war though merely formally kept alive had in fact ended, is a question too fraught with gravity even to be adequately formulated when not compelled.").